Arla Foods has defended its new ‘Live Unprocessed’ ad campaign – which makes a virtue of using milk from cows that have not been fed the growth hormone rBST - in the wake of legal action filed by rBST maker Eli Lilly alleging the ads are “built upon a fundamental deception.”

In a May 19 false advertising lawsuit* filed in Wisconsin, pharmaceuticals giant Eli Lilly and Elanco (a division of Eli Lilly) argue that Arla’s $30m multimedia Live Unprocessed campaign​,​ launched in late April, presents the growth hormone as something scary, monstrous and unnatural.

It adds: “Arla’s portrayal of rBST as a deadly monster​ [via this video​​] is blatantly, and egregiously, false. rBST is not dangerous and is not something consumers should fear… Arla’s ‘Live Unprocessed’ webpage also repeats the false claims that rBST is ‘weird stuff,’ that Arla’s products are of better quality because they are made from the milk of cows not treated with rBST, and that rBST is an ingredient in some cheese​ [when it is in fact a legally approved growth hormone supplement fed to cows produced and sold by Elanco under the brand name Posilac].

'Arla’s assault on rBST’s safety is anything but subtle'

rBST, notes the complaint, is a supplement that Elanco produces and sells under the brand name Posilac: “Posilac is a recombinant DNA-derived version of bovine somatotropin or ‘BST,’ a hormone that occurs naturally in all cows and that helps regulate the production of milk.”​

Meanwhile, Arla’s “assault on rBST’s safety is anything but subtle​,” adds the complaint, which accuses Arla of violating the Lanham Act and breaching unfair competition laws.

“In the 30-second television commercial that is the centerpiece of the campaign, Arla depicts rBST as an enormous, six-eyed monster with ‘razor-sharp horns’ and ‘electrified’ fur. Arla reinforces the core message that rBST is “dangerous” through an extensive, internet-based social media campaign that amplifies and repeats the commercial’s key images and messages.”​

'At least one major US dairy manufacturer has already decided to significantly reduce its purchases of milk from cows treated with rBST'​

Following multiple, extensive reviews of the scientific evidence, argues the complaint, the FDA has determined that rBST is safe, and that there is no discernable difference between milk from cows supplemented with rBST and milk from unsupplemented cows (a message firms are advised to state on pack if they are making rBST-free claims).

The ads are causing “irreparable harm​” to Elanco given that Posilac is the only rBST product approved for sale in the US, adds the complaint, which alleges that “at least one major US dairy manufacturer has already decided, as a result of Arla’s advertising campaign, to significantly reduce its purchases of milk from cows treated with rBST​,” and that “Companies that supply milk to this manufacturer have notified dairies that they will no longer be accepting milk from cows treated with rBST​.”

A child's drawing featured in the ads depicts rBST as a monster

It adds: “FDA and the State of Wisconsin have expressly determined that any advertisement that portrays a dairy product made from milk of cows that have received rBST supplements as unsafe or compositionally different from other dairy products is false and misleading. Arla’s ads ignore these proscriptions and, in doing so, violate both federal and state truth-in-advertising laws.”​

Arla Foods: Complaint doesn't prove ads harmed Elanco​

In a motion to dismiss the complaint filed on June 2, however, Arla Foods insisted: “There are no allegations sufficient to claim that Arla’s actions proximately caused the harm about which Plaintiffs complain. Plaintiffs therefore lack Article III standing and fail to state a claim under the Lanham Act or Wisconsin state law.”​

It also cited a 2010 opinion from the Sixth Circuit court of appeals (Int’l Dairy Foods Ass’n v. Boggs​, 622 F.3d 628, 637 (6th Cir. 2010) which found that “milk from cows treated with rBST contained higher levels of compounds, including pus, that accelerated the spoiling of the milk; increased fat content and decreased levels of proteins; and elevated levels of Insulin-like Growth Factor 1 (IGF–1), a hormone linked to several types of cancers.”​

recombinant bovine somatotropin (rbST) is an animal drug approved by FDA to increase milk production in dairy cows (it is also known as recombinant bovine growth hormone or rBGH).

In a March 2016 letter ​​responding to a citizen's petition calling for on-pack warnings about rBST, the FDA said: "FDA concluded that Posilac administered by subcutaneous injection as 500 mg of rbGH every 14 days, starting during the 9th to 10th week of lactation, is safe and effective for its intended use in healthy lactating dairy cows. In addition, the Agency found that there was no significant difference between milk from cows treated with rbGH and milk from cows that have not been treated with rbGH​."​

'Eli Lilly, Elanco, must prove causal link between ads and injury...'

Arla farmers do not supplement their cows with rBST, noted Arla Foods. “Consistent with Arla’s philosophy, the purpose of the commercial is to give purchasers of cheese products more information about how their food is made, so that they can make more informed purchasing decisions.”​

For any injury to Elanco to be fairly traceable to the ad campaign, claimed Arla, the plaintiffs would need to show that consumers saw Arla’s ad and decided not to buy cheese made with milk from cows treated with rBST; and that retailers, manufacturers, dairy supply companies and dairy farmers were directly impacted and chose to stop supplying products from milk made from cows treated with rBST.

Xanthan gum is depicted as an alien

“They have not established the requisite ‘causal connection’ between the campaign and their alleged pecuniary losses.”​

Arla Foods CEO: Lawsuit is completely baseless

In a press release issued after the lawsuit was filed, Arla US CEO Don Stohrer, Jr said the allegations in the suit were “completely baseless and without merit​,” and argued that “Live unprocessed is a philosophy that speaks to the increasing number of people today who are looking for ways to ‘unprocess’ their lives.”​

Attorney: Arla Foods has not yet set forth its entire legal defense

Commenting independently on the case, Freeborn & Peters partner David Ter Molen told FoodNavigator-USA that, "Arla Foods has certainly not set forth its entire legal defense, but is instead making a threshold argument it hopes will result in either dismissal of the case or, at a minimum, the judge receiving an education about some potential weaknesses in Plaintiffs’ case."​

He added: "Arla’s Motion to Dismiss highlights that unlike most Lanham Act cases, the parties are not competitors because Arla produces and sells cheese while Plaintiffs produce and sell a supplement for cows known as rBST. ​

"In light of this distinction, Arla raises the argument that Plaintiffs’ cannot show any injury-in-fact because its alleged injuries are too speculative. Courts are generally loathe to make such rulings at the pleadings stage, however, and the Court will likely decide that Alta’s motion simply raises issues of fact or grant the motion but allow Plaintiffs to amend their pleadings."​

Plaintiffs are taking a page out of the class action plaintiffs' playbook

In addition, he said, "Plaintiffs are taking a page out of the class action plaintiffs' playbook by citing FDA findings and guidance​​ in their complaint to bolster its position that Arla's advertisements are 'false and misleading.' But because this is primarily a federal Lanham Act case, the FDA findings and guidance will not be dispositive and there will likely be a question as to how much weight, if any, they should given by the finder of fact."​

Arla Foods is an international dairy company owned by 12,000 farmers from Denmark, Sweden, the UK, Germany, Belgium, Luxemburg and the Netherlands. Its brands include Arla, Lurpak and Castello.